Linda Greenhouse has an article in the Sunday NY Times, Week in Review (p. 5), describing the growing movement for term limits on the US Supreme Court. My colleague, Steve Calabresi, has been discussing this for years, though he wasn't the first to suggest it. And a few years ago, I discussed our proposal for 18-year term limits on the ConLawProf discussion list. Then in 2002, Calabresi and Akhil Amar did an op-ed for the Washington Post on the topic.

Lifetime tenure for judges was "the best expedient which can be devised in any government," Alexander Hamilton wrote in The Federalist No. 78, defending the Constitution's provision for judges to "hold their Offices during good Behavior." Of the wisdom of that proposition, he added, "there can be no room for doubt."

But an ideologically diverse group of legal scholars is now not so sure. Judicial tenure? Definitely. A long one? Probably. But life tenure, which increasingly translates into 25 to 30 years on the bench, extending into extreme old age? When it comes to the Supreme Court, at least, there seems to be plenty of room for doubt, and the doubts are growing.

Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.

The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8. [Although Greenhouse doesn't give her source, these are from my data analysis, though it appears that she misrounded the first figure from 15.12 to 15.2-JL]

In law review articles and commentaries that began as a trickle a few years ago and that now, as these things go, amount to a flood, scholars are questioning whether this is what the Framers had in mind. The modern justices' longevity "has fundamentally altered the practical meaning and implications of lifetime tenure," Professors Steven G. Calabresi and James Lindgren of Northwestern University School of Law have written in an unpublished article.

"We aim to dispel the myth that life tenure for justices is fundamental to our democratic self-government," they write, pointing out that only one state, Rhode Island, provides it for its supreme court judges and that every other major democracy has age or term limits.

The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age - and, predictably, not all will escape - will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.

"The result is a situation of grave proportions needing correction," wrote two other law professors, Paul D. Carrington of Duke and Roger C. Cramton of Cornell. "Unchecked power, the Founders correctly believed, has a tendency to produce a degree of hubris and arrogance among those who exercise that power."

The article goes on from our proposal to discuss some of the details of a proposal by Paul Carrington and Roger Cramton, which is similar to ours, but with a different phase-in. Recently, they circulated a proposal for 16-year term limits, but they have now corrected it to call for 18-year limits, which makes theirs consistent with most other proposals.

Under our proposal (like some others), after a phase-in period a President would appoint a new Justice every odd year. At the end of 18 years, the Justice would go on senior status, and could be assigned to hear cases on other federal courts.

In my data analysis, I found that the problem arose fairly suddenly after 1970. It was not a gradual increase in tenure on the Court over the prior 180 years as human life expectancies rose, though this increase in survival helped make longer tenure possible. Rather, the era since 1970 has been unlike any other, including the immediately preceding 1941-70 period.

Term Limiting Supreme Court Justices:
Lately I was asked to endorse the following proposal by law professors Paul D. Carrington and Roger C. Cramton to limit the terms of Supreme Court Justices:

THE SUPREME COURT RENEWAL ACT OF 2005

Congress should enact the following as section 1 of Title 28 of the United States Code:

(a) The Supreme Court shall be a Court of nine Justices, one of whom shall be appointed as Chief Justice, and any six of whom shall constitute a quorum.

(b) One Justice or Chief Justice, and only one, shall be appointed during each term of Congress, unless during that term an appointment is required by Subsection (c). If an appointment under this Subsection results in the availability of more than nine Justices, the nine who are junior in commission shall sit regularly on the Court. Justices who are not among the nine junior in commission shall become Senior Justices who shall participate in the Court's authority to adopt procedural rules and perform judicial duties in their respective circuits or as otherwise designated by the Chief Justice.

(c) If a vacancy occurs among the nine sitting Justices, the Chief Justice shall fill any temporary vacancy by recalling Senior Justices in reverse order of seniority. If no Senior Justice is available, a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that term of Congress. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next term of Congress for which no appointment has yet been made.

(d) If recusal or temporary disability prevents a sitting Justice from participating in a case being heard on the merits, the Chief Justice shall recall Senior Justices in reverse order of seniority to provide a nine-member Court in any such case.

(e) Justices sitting on the Court at the time of this enactment shall be permitted to sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice.

As explain by its authors, this proposal would have the effect of limiting the term of "active" justices to approximately 18 years:

The result is that all Justices appointed to the Court in the future would serve as the nine deliberating and deciding members for a period of about eighteen years (depending upon the interval between the initial appointment and the promptness of the appointment process eighteen years later). However, the Act does not restrict the lifetime tenure of the Article III judges appointed as a Justice or Chief Justice of the Supreme Court. Instead, it defines the regular membership of the Court as consisting of the nine most recently appointed Justices. Some of the Senior Justices who no longer participate regularly in the Court's decisional work may be called upon to provide a nine-member Court when that is necessary (see Subsection (d)). And all of them continue to retain the title of "Justice of the Supreme Court" and to exercise the judicial power of the United States as judges of a circuit court, a district court, or some other Article III court. In short, the Act defines the "office" of a Supreme Court "judge" in a new way. This feature distinguishes the Act from statutory proposals to place age limits or fixed terms of service on Supreme Court Justices. Senior Justices will continue to have lifetime tenure as Article III judges in accordance with the "good behavior" clause of Section 3 of Article III.

I tend to favor term limits--what the Founders called "rotation in office"--for elected officials, but this proposal gave me pause. I am not as unhappy with the current system of judicial appointments as some on the left and right. Still, this proposal seems to have some merits in that it regularizes the process of adding new members to the court. (I cannot find the actual proposal on line so you can read the justifications offered by its authors, but you can read a New York Times story on the proposal here. If someone finds a link to the full proposal, I will add it here.)

So far, I have not signed on, but was curious to hear thoughtful reader reaction. So I have activated comments. I am particularly interested in hearing potential problems with the proposal, as its purported benefits are more obvious. However, feel free to voice your support as well as opposition. But reasons will be more persuasive to me than expressed preferences.

A CLOSER LOOK AT TERM LIMITS; PROBLEMS WITH THE CARRINGTON/CRAMTON PROPOSAL.—

Randy Barnett raises the issue of term limits, which I blogged about a few weeks ago. There are at least three major questions to be answered in deciding whether to endorse the Carrington/Cramton proposal, or any specific proposal on term limits for the Supreme Court:

1. Do you favor 18-year term limits for Supreme Court justices?

Such proposals date back over a decade to (as I recall) at least Greg Easterbrook's. The Carrington/Cramton proposal from late 2004 and the one that I discussed on CONLAWPROF about 4-5 years ago and the one that Steve Calabresi and Akhil Amar proposed in a 2002 Washington Post op-ed all opt for 18-year term limits.

2. Can this be accomplished by statute by retaining life tenure (with reduced powers and responsibilities) or must such a change be accomplished by a Constitutional Amendment?

Reasonable people can differ on this. The Carrington/Cramton proposal opts for a statute. Early versions of the Calabresi proposal said that either a statute or a Constitutional amendment were possible. The draft that Calabresi and I are rewriting now calls for Constitutional amendment, not a statute, as the wiser course, which was my initial cut when Calabresi first raised the idea of Supreme Court term limits with me back in 2000.

3. Which proposal do you favor?

Even if you are willing to endorse 18-year term limits and think it can be done by statute, rather than by constitutional amendment, there is still the question of which implementation of 18-year term limits works best. I know that Calabresi, when he endorsed the Carrington/Cramton proposal thought that it did much the same thing as the proposal that he and I have been working on for years. But it doesn't. (Obviously, between the two, he favors our proposal.) The Carrington/Cramton proposal might still be better than the status quo (I don't know), but I think the version that Steve Calabresi and I developed is better on specifics—which of course one would expect us to think of our own proposal.

I just read the Carrington/Cramton proposal for the first time last night, and I think there are some serious problems with it. I will leave aside for now some problems with their phase-in period (because any proposal will have some potential oddities associated with the phase-in period), and I will focus only on problems with the Carrington/Cramton proposal once it is fully phased in and functioning.

The Carrington/Cramton proposal provides BOTH that "the nine who are junior in commission shall sit regularly on the Court" hearing cases AND that "One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress." While under the current law and any scheme that I have considered, the Senate always has the power to delay approving and thereby to delay adding a justice for strategic reasons, under current law and our proposal, the President and the Senate have no power to REMOVE a justice from hearing cases because they want to replace him or her. But under the Carrington/Cramton proposal, they do. And this dispute would happen, not just occasionally, but with almost every appointment.

Imagine if the Carrington/Cramton proposal were fully phased in today and a Democratic appointee and strong liberal were the most senior sitting justice. The Carrington/Cramton proposal provides that "One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress." Accordingly, some in the Bush White House would want the new Bush choice confirmed NOW in the first months of the new Congress, so the new justice could bump a sitting Democratic justice off the cases already being heard. The Democrats would respond, "What's your hurry?" Under the Carrington/Cramton bill, they could wait until late in 2006 to replace the current sitting justice. Suppose that there is a major case coming before the Court late in this term and the more political branches want the senior Justice bumped off the Court that would hear the case. This would seem to me to be highly disadvantageous.

Further, this power to remove sitting justices from hearing cases (including from anticipated specific cases) at the discretion of the other two branches would raise Separation of Powers concerns. Indeed, giving the two non-judicial branches the discretion to set the end of a particular justice's ability to hear cases routinely would make it particularly inappropriate to try to do so by statute, rather than Constitutional amendment. I don't think that the Carrington/Cramton proposal can both urge a statutory solution and give the executive and legislative branches the discretion over when during a 2-year window to remove a sitting justice from hearing cases.

Further, suppose that the Bush White House gets its choice through in February or March in the first year of the new Congress. The new justice would obviously supplant the senior justice on cases on which certiorari had not yet been granted, but what about cases on which cert. had been granted, but the cases not yet argued? What about cases argued but not yet decided? As I read the C/C proposal, the new justice would sit immediately, probably bumping the senior justice off cases heard but not decided: "The nine who are junior in commission shall sit regularly on the Court." At the least, the application of their statute to existing cases is unclear.

I apologize for not making our full specific proposal public now, but (while its logic has been worked out and we have a draft provision) we have not yet run it by those more skilled in legislative drafting. We go for fixed terms of 18 years, each starting and ending in the summers of odd years:

c. The Length of the Terms of Regular Service. There shall be nine staggered full terms of Regular Service on the Supreme Court, each approximately 18 years in length, with terms beginning and ending every two years in odd numbered years. An old term of Regular Service shall end and a new term shall begin on July 1 of each odd numbered year if the Supreme Court has recessed for the summer by that date. Otherwise, the term of Regular Service shall begin and end on the first full day of recess after July 1, but in no event shall the date for beginning and ending a term of Regular Service be later than October 1 of the relevant odd-numbered year.

Calabresi and I expect to make our draft, which has been circulating in a limited form since 2001 or 2002, finally public in mid-March. At that time, I will try to set out what I think are the chief merits and demerits of our Constitutional proposal.

For the reason I set out above, while I strongly favor the idea of 18-year term limits, I do not favor the particular proposal put forward Carrington and Cramton, though with revisions to track more closely our proposal, I would probably favor it.